1988 PLP 596 (MLD)

‑‑‑O.XXI, R. 58 & O.XLII1, R. 1‑‑Appeal‑‑Decree against mortgaged property‑ Execution of decree‑‑Objection to decree under provisions of OXXI, R. 58, C.P.C. rightly dismissed by Executing Court as not maintainable‑‑Observations of Court as to merits of case were however, not warranted‑‑Finding of Executing Court being in consonance with law, appeal against such finding was dismissed as without merit. Akhtar Mohammad for Appellants M.G.H. Malik for Respondent. Date of hearing: 9th May, 1988. AJMAL MIAN, J.‑‑This appeal is directed against an order dated 14‑5‑1986, passed by the learned Presiding Officer, Special Court (Banking) for Sind at Karachi, the Execution Application No. 74 of 1984, Suit No. 82 of 1981, upon the appellants' application under Order XXI, Rule 58, C.P.C.

2. The brief facts leading to the filing of the above appeal are that respondent Bank granted over‑draft facility to Farheen Atique. It seems that in order to secure the above over‑draft facility said Farheen Atique in addition to executing a promissory note dated 31‑12‑1978 for a sum of Rs. 7,57,156 with minimum interest of 14 % got bungalow No. 63‑A/11, Defence Housing Society mortgaged by her sister Mrs. Anwar Jehan Oureshi. It appears that since the loan amount was not cleared by said Farheen Atique, respondent filed Suit No. 82 of 1981 for recovery of Rs. 9,96,145.45 under Order 34 read with Order 37, C.P.C. on the promissory note as well as on mortgage. In the above suit they impleaded said Farheen Atique as defendant No. 1 Mrs. Anwar Jehan Qureshi as defendant No. 2 and M.Q. Zaman, father of Farheen Atique, as defendant No.

3. It further seems that a preliminary ex parte decree was passed on 30‑9‑1981. After that a final decree was passed on 19‑12‑1983, which was prepared on 3‑7‑1984. In pursuance of the above decree the respondent filed aforesaid Execution Application and sought the sale of the mortgaged property. It appears that a proclamation of sale was issued on or about 14‑4‑1986 for sale on 15‑5‑1986. The present appellants, one of whom is the son and two are daughters of said Anwar Jehan Qureshi filed aforesaid application under Order XXI, Rule 58, C.P.C. alleging therein that the mortgaged property belonged to their father Abdul Lateef Qureshi who expired on 14‑10‑1974, leaving behind said Anwar Jehan Qureshi as the widow and the appellants as the son and daughters as the legal representatives/legal heirs. It was also alleged that their mother Anwar Jahan Qureshi without their knowledge got the mutation in the record of the Defence Housing Authority effected in her favour on the basis of an alleged will executed by their father Abdul Lateef Qureshi allegedly on 3‑9‑1973, whereby he allegedly purported to give the mortgaged property too his wife Mrs Anwar Jehan Qureshi without their knowledge got the mutation The above application was resisted by the respondent bank inasmuch as a counter affidavit alongwith certain documents was filed. It is the grievance of the appellants that they were not given an opportunity to file rejoinder in rebuttal to the above counter‑affidavit. Be that as it may, the learned Presiding Officer, after hearing the learned counsel for the parties, by the order under appeal held that Order XXI, Rule 58, C.P.C. was not attracted as there was no attachment of the mortgaged property in execution application. lie has further observed on merits that the application was mala fide and was a belated application which was filed with the object to delay the execution of a decree. The appellants being aggrieved by the above order have filed the present appeal.

3. In support of the above appeal Mr. Akhtar Mahmood, learned counsel for the appellants has vehemently urged that since in the proclamation of sale it was stated that the property was attached, Order XXI, rule 58 was attracted to and, therefore, the learned Presiding Officer erred in holding otherwise. He has further submitted that there was no justification to make observations on the ` merits of the above application if factually it was not competent and even otherwise the facts of the case did not demand making of such observations. On the other hand Mr. G.H. Malik, learned counsel for the respondent ‑bank has contended that since the suit was filed inter alia on mortgage of the property in question there was no attachment order passed by the learned Presiding Officer in terms of Order XXI, Rule 54, C.P.C., as to attract the application of Order XXI, Rule 58, C.P.C. In the alternative he has submitted that there was no need of attachment and even if there would have been any alleged attachment, it would not have made any difference as to the applicability of Order XXI. Rule, 58, C.P.C. In furtherance of his above submission, Mr. Akhtar Mehmood has invited our attention to photostat copy of proclamation of sale wherein on the first page the words "for the sale of the attached property mentioned in the annexed schedule" have been mentioned. It has, therefore, been contended by him that the above proclamation of sale clearly indicates that the property in question was attached as to attract the application of Order XXI, Rule 58, C.P.C.

4. We are inclined to hold that merely the fact that in the above printed proclamation of sale the above words have appeared, would not change the real position in the matter, it is an admitted position that the suit was inter alia on the mortgage and the preliminary decree was passed inter alia in respect of the mortgaged property. There was no attachment order passed by the Presiding Officer after the filing of execution application in terms of Order XXI, Rule 54, C.P.C. In this view of the matter, in our view, the learned Presiding Officer was correct in holding that Order XXI, Rule 58, C.P.C. is not attracted to the instant case. If any reference is needed we may refer to the case of Australasia Bank Ltd. v. Messrs Juma Khan Agha Javed Corporation & others reported in P L D 1976 Kar. 414 in which Naimuddin, J. (as he then was) has held that Order XXI Rule 58 does not apply to a sale of mortgage property in execution of a decree for sale of mortgage property. We arc in respectful agreement with the above view.

5. It was then contended by Mr. Akhtar Mehmood Khan learned counsel I ‑for the appellants that in view of the amendment made by the Law Reforms `B Ordinance 1972 a party cannot File a suit after the dismissal of his application I, under Order XXI, Rule 58, C.P.C. It will suffice to observe that the suit will be barred only in those cases where the provisions of Order XXI, Rule 58, are applicable and not in a case where the above provisions of the C.P.C. are not applicable.

6. Before parting with the above discussions we may observe that the i learned Presiding Officer after having held that Order XXI, Rule 58, C.P.C. was not applicable was not justified in making some observations on the merits of the claim as according to his own finding the application was not competent and, C therefore, we are of the view that the observations were not warranted. The order of the learned Presiding Officer seems to be in consonance with law subject to the above observations. The appeal has no merits and it is dismissed with no order as to costs. A.A./K‑99/K Appeal dismissed.